BONIFACE KAGUO MWANGI vs CONTRATOURS LIMITED,SANKEN LIMITED [1999] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellant left the full court proceedings out of the appeal record.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the record of appeal should be struck out for breach of rule 85(1)(d) of the Court of Appeal Rules in that it does not include the full proceedings
- 2.Whether an appellant may unilaterally decide which documents are relevant or necessary for inclusion in the record of appeal
Key legal issues
#Omission of the full proceedings from the record of appeal
The record of appeal must include the full proceedings as required by rule 85(1)(d); failure to do so justifies striking out the notice of appeal and the appeal.
The court noted that the proceedings were admittedly not included in the record. Under sub-rule 85(3), the appellant cannot unilaterally determine the relevance or necessity of documents; the full proceedings must be included. The omission was therefore a breach of the Rules warranting striking out the appeal, with costs to the respondent.
Legal principles established
#- A record of appeal that omits the full proceedings breaches rule 85(1)(d) and is liable to be struck out; it is not for the appellant to decide whether a document is relevant or necessary for the record.
Court orders
#- 1.The application succeeds
- 2.The appeal is struck out
- 3.Costs awarded to the respondent, including the costs of the motion filed on 26th November, 1998
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out a notice of appeal and appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This is an application under rule 80 of the Rules of this Court to strike out the notice of appeal and the appeal for breach of the provisions of rule 85(1)(d) in that the record of appeal does not include the full proceedings.
it is not for the appellant to decide whether a document is relevant or necessary in view of sub-rule 85(3) of the Rules
Accordingly, the application succeeds. The appeal is struck out with costs including the costs of the motion filed on 26th November, 1998.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BONIFACE KAGUO MWANGI vs CONTRATOURS LIMITED,SANKEN LIMITED [1999] KECA 153 (KLR)", Case Analysis (1999). Civil Appeal (Application) No. 183 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/153/eng@1999-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.